Which Ox Caused the Damage

Bava Kama (3:11) | Yisrael Bankier | 4 months ago

The Mishnah (3:11) deals with cases of damage, where the cause was
disputed. The common ruling is based on the principle of "ha'mitzi
mechaveiro alav ha'raaya" – the burden of proof rests on the one
attempting to extract the funds. One case is where one of two oxen own
by one person, pursued, gored and killed another. Recall that in the
case of an ox that is defined as tam – does not have a history of
goring – that the owner must pay half the value of the damage caused,
and the compensation is taken from the value of the ox that caused the
damage. In this case the owner of the ox that was killed claims it was
the more expensive of the two that caused the damage, to maximise his
compensation. The owner of the two oxen however claims it was cheaper of
the two. As explained, the owner of the ox that was killed must prove it
was the more expensive of the two otherwise he can only be paid to the
value of the cheap of the two oxen.

The Rambam (Hilchot Nezikin 9:1) rules that in a case like our
Mishnah's, if there were witnesses that saw the attack but are unsure
which ox caused the damage, the mazik (owner of the ox that caused the
damage) would be required to make a shevua (oath). This is because
the owner is admitting to part of the claim that was made against him,
The Raavad comments that that would only be true if one ox was a
mu'ad (the owner had been warned after each of the three previous
goring incidents) and the other a tam. This is because if the mu'ad
caused the damage, then there is a lien on all the mazik's property to
pay for the damage. By admitting that it was the tam, it is considered
a partial admission. If however, as we explained above, both oxen were
each a tam, then the Raavad maintains that the claim that the small
ox caused the damage is not considered a partial admission. The Maggid
Mishneh however disagrees. He argues that since there were witnesses,
there exists an obligation to pay. We need to understand the positions
of the Raavad and Magid Mishneh.

The Shach (ChM 400:6) finds the Maggid Mishneh difficult. The
payment required in the case of a tam is defined as a kenas (fine)
and not mamon (compensation). Considering that when one admits to a
fine (in the absence of witnesses) that they are exempt from paying it,
a shevuah in the case where each ox was a tam should not be required
since once the owner admits he is exempt from payment.

The Ketzot (400:1) cites the Tumim (88:11) that defends the Magid
Mishneh. He answers that since there were witnesses to the damage, this
case would not considered as admitting to a kenas but rather admission
to a payment. The Tumim compares this case to a bankrupt individual
that stole, was caught and was required to pay double (as a kenas). If
the thief, then revealed that he has hidden assets, that would certainly
not be considered as admitting to a fine. In this case also, the Torah
obligated the owner with paying for half of the damage caused. In other
words, there is no question regarding the obligation and value of the
kenas. The Torah however said that the payment must come from the ox
that caused the damage. If its value is less than the damage caused,
then the owner of the ox that was killed loses that difference.
Consequently, the "admission" in this case should only be considered as
directing us to the source of the funds.

The Ketzot however disagrees. In the case of the thief, even if the
thief was indeed bankrupt, if the funds eventually become available the
obligation still exists. In the case of a tam, the funds can only be
extracted from the ox that caused the damage and no other property.
Without identifying the ox, there is no obligation. Consequently, in
support of the Shach, once the owner identifies the ox that caused the
damage, it would be considered as if he incriminated himself, admitting
to the knas and thereby exempt.